Litigation Trending: Remote prospect of return to Pre-Covid practices

At the start of the year, Ashurst's Commercial Litigation team published 10 predictions for 2021. First on our list was a suggestion that remote or hybrid hearings are here to stay. A recent speech by Sir Julian Flaux, the new Chancellor of the High Court of England and Wales, has confirmed that is likely to be the case. Praising the speed with which the courts, lawyers and clients rose to the challenges thrown up by the COVID-19 pandemic, the Chancellor noted that, as the end of the pandemic begins to draw nearer, now is an opportune moment to take stock and to "seize the good things that have come out of the terrible crisis – the efficiencies and the things that we have learnt to do better – and jettison the bad".

Take it or leave it?

The Chancellor was "clear that we will not be returning to the position as it was in early 2020". Remote and hybrid hearings have become part of the fabric of the court system. The Chancellor focused on two themes.

1. Cost and efficiency balanced with justness and fairness. It is clear that certain hearings are naturally suited to remote hearings and that it is more efficient for them to be held in that manner. Their conduct requires less time and saves costs. That has been the overwhelming experience in respect of, for example, directions hearings. That said, the Chancellor explained that "those elements of a trial involving an assessment of a witness's credibility and (on occasion) interim applications involving a litigant in person are….examples of matters that are often best conducted live".
2. Dignity of court. The Chancellor was keen to reiterate "the benefits of many of the formalities" of in-person hearings and the need to guard against the "informality that can creep in when we are conducting cases from our kitchen tables". Concerns about that informality stem not from a desire to preserve pomp and circumstance, but rather to ensure that the formality of the courtroom continues to convey the necessary seriousness on the decisions being taken and to ensure that all parties behave appropriately. Consideration will therefore need to be given as to how that formality can be retained remotely – in particular, ensuring that technology used is fit-for-purpose.

What might change?

In light of these two themes, there are a number of areas where we consider permanent changes are likely. These include:

1. Routine listing of short hearings as virtual. Hearings which are listed for less than one day (for example, directions hearings) are likely to be held remotely unless there is a particular reason why an in-person hearing is necessary. This will reduce time and costs for the parties.
2. Electronic bundles. These were being used increasingly prior to the pandemic in any event. The courts are likely to stipulate that a consistent approach be required for the preparation of electronic bundles to ensure that a) all parties are on the same page (literally) and b) parties who do not have access to expensive technical solutions, e.g. litigants in person, are not subject to prejudice or burdensome costs.
3. Live streaming of hearings. This is another feature of remote hearings which looks set to remain. Open access to justice is a fundamental part of our legal system and providing links to public and press to allow them to watch proceedings remotely is an effective way to make sure that justice is open. However, careful consideration will be required to ensure that confidential information, etc, is still dealt with appropriately.
4. Investment in infrastructure. Courts, law firms and clients have all had to adapt rapidly to remote hearings and to make the best of the technological solutions available to them at the time. In a post-pandemic world, the courts are likely to be less forgiving of technical mishaps. Investment has already been made to upgrade courtrooms to facilitate remote hearings. Law firms and clients will need to make a similar investment to ensure that the technology at their disposal is suitable.
5. International access. The English courts frequently hear cases which involve international parties. Those parties' witnesses, legal advisers and other representatives often have to fly across the world to be present at hearings. Going forward, remote hearings raise the prospect of at least some of those participants being able to attend virtually, with an associated reduction in both cost and carbon footprint. With companies looking to cut costs as they recover from the pandemic and becoming increasingly mindful of environmental concerns, an effective system for remote hearings ought to help the English courts remain a jurisdiction of choice for international litigation.

What do I need to do?

A year on from the start of the pandemic, there has been a sea change in the way hearings are held. The courts and the judiciary have demonstrated an ability to adapt and be pragmatic. Going forward we expect that court users will need to be prepared to participate in remote hearings on a regular basis and be mindful of the potential for strict technical and procedural requirements to be enforced. What is clear is that remote hearings are here to stay – so don't delete that Zoom background just yet.

Author: Aaron Marchant, Solicitor

Read our previous Litigation Trending Update here.